In Part IV(B) we concluded that the Rules do not prohibit an arrange-ment in which L2 reports his or her activities to L1, with L1 assuming the responsibility to handle all communications with the client. Let us now as-sume that L2 has in fact been engaged and that both L1 and L2 understand that L2 will communicate only with L1. The next question for analysis is whether there may be a situation in which L2 has an obligation to deviate from the arrangement and contact the client directly.
What might happen to make it unreasonable for L2 to continue communi-cating through L1? Obviously, if the client has consented to the arrange-ment, the client may revoke the consent.130 A more challenging situation will be one in which the client has not rescinded previous approval and has not indicated dissatisfaction with the existing reporting arrangements. What if, in that case, L2 independently determines that L1 is improperly representing the client? May L2 then “go around” L1 and make direct contact with the client? Must L2 do so? Some guidance can be found in the Rules and in case law.
1. The Fluid Concept of Reasonableness Under the Model Rules As we observed in Part IV(B), Scenario 1, the Rules do not explicitly permit L2 to communicate through L1. However, some justification for the practice may be found in Rule 1.2(c), which permits a lawyer to limit the scope of representation if “reasonable under the circumstances and the client
130. MRPCR.1.2 cmt. 3 (1983).
gives informed consent.”131 Comment 3 to Rule 1.2 offers the following perspective:
At the outset of a representation, the client may authorize the law-yer to take specific action on the client’s behalf without further consultation. Absent a material change in circumstances and sub-ject to Rule 1.4, a lawyer may rely on such an advance authoriza-tion.132
To the extent that the lawyers have determined (with or without client approval) that an L2-to-L1 chain of communication is appropriate, it is en-tirely possible that later developments may require a reassessment of the ar-rangement. Comment 3 to Rule 1.2 suggests that both L1 and L2 should consider from time to time whether the delegation of reporting responsibili-ties to L1 continues to be appropriate. If L2 determines that L1 is not proper-ly representing the client, L2 would do well to consider this a change of cir-cumstances with regard to reporting through L1.
The change-in-circumstances concern is also relevant to Rule 1.4. In Part IV(B), Scenario 1, we observed that Rule 1.4(a)(3) requires a lawyer to
“keep the client reasonably informed,” while Rule 1.4(b) requires explaining a matter “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”133 We have argued that the reasonableness standard supports the propriety of channeling L2’s communi-cations through L1. However, what is “reasonable” depends on the circum-stances at each point in the representation, and an arrangement that is reason-able at one point may well cease to be so at a later time.
Moving beyond Rules 1.2 and 1.4, we can find a useful standard in Rule 3.3, which prohibits a lawyer from introducing into a proceeding any “evi-dence that the lawyer knows to be false.”134 Comment 8 draws a distinction between what a lawyer knows to be false (this cannot be introduced into evi-dence) and what a lawyer reasonably believes to be false (introduction of such evidence is not prohibited).135 The Comment tries to avoid pure subjec-tivity in assessing knowledge versus reasonable belief by stating that the lawyer’s knowledge “can be inferred from the circumstances.”136 The
131. Id. at 1.2(c).
132. Id. at 1.2 cmt. 3 (emphasis added). Rule 1.2 cmt. 3 concludes that “ [t]he client may, however, revoke such authority at any time.” Id. This is straightforward, and our analysis will not address revoca-tion by the client.
133. Id. at1.4(a)(3) (emphasis added); Id. at 1.4(b).
134. MRPC R.3.3(a)(3) (1983).
135. Id.at 3.3 cmt. 8.
136. Id. This statement reflects the definition of “knows” in Rule 1.0(f): “‘Knowingly,’ ‘known,’ or
‘knows’ denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” Id. at 1.0(f).
ment ends with the pointed admonition that a lawyer “cannot ignore an obvi-ous falsehood.”137 The same standard can be applied with regard to whether L1’s improper behavior should cause L2 to stop communicating through L1 and report directly to the client. L2 may be reluctant to blow the whistle on L1, especially if L1 has brought L2 into the matter, and so L2 may prefer look the other way. However, under the standard of Comment 8 to Rule 3.3, L2 may not ignore the situation if L1’s malfeasance is obvious.
Finally, we may ask whether a lawyer’s general obligation to report an-other lawyer’s misconduct would compel L2 to inform the client of L1’s improper behavior. Rule 8.3 requires such reporting, but with two significant limitations. First, Rule 8.3 applies only if the conduct “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”138 There may be circumstances in which L2 determines that L1’s behavior on a matter is egregious enough to require a report to discipli-nary authorities, but L1’s actions may affect the existing client only and not raise a Rule 8.3 “substantial question.” The second limitation is that the duty under Rule 8.3 is to report to “the appropriate professional authority.”139 It does not impel a lawyer to inform the affected client. In the end, Rule 8.3 describes an obligation to the legal system, while in our discussion L2 is faced with more immediate and specific ethical duties to a particular client on whose behalf L2 has been engaged. Rule 8.3 may suggest a policy of reporting misbehavior to whomever is affected, but as written, it is not spe-cifically crafted to require communicating with a client.140
2. How the Courts Have Ruled
The question of when an attorney must inform the client of co-counsel’s malfeasance has been addressed by several courts. A useful analysis has been offered by the Fifth Circuit in Curb Records v. Adams & Reese L.L.P.,141 a case in which a music producer, Curb, was sued for copyright infringement in the United States District Court for the Eastern District of Louisiana.142 Curb retained a California lawyer, who we will refer to as L1,
137. Id.at 3.3 cmt. 8.
138. Id. at 8.3(a).
139. Id.
140. Id. Reliance on Rule 8.3(a) has been questioned in Richmond, supra note 2, at 504–05. Richmond argues that the Rule may be applicable in a case involving misappropriation (i.e., conduct that “raises a substantial question” as to a lawyer’s “honesty, trustworthiness or fitness as a lawyer in other respects”), but he argues that the Rule should not apply in “an isolated incident of negligence.” Richmond, supra note 2, at 504–05. He also observes that the Rule does not require reporting to a client, but to bar authori-ties. Id.
141. No. 98-31360, 1999 WL 1240800 (5th Cir. Nov. 29, 1999).
142. Id. at *1.
as lead counsel to defend the case.143 L1 was required to retain local Louisi-ana counsel, and Curb authorized L1 to do so and “to limit local counsel’s authority as he saw fit.”144 Thus, L1 retained L2, whose role was limited to receiving pleadings and forwarding them to L1, plus filing and serving plead-ings received from L1. L1 specifically instructed L2 to have no direct con-tact with Curb.145
As the case proceeded, L2 duly forwarded discovery requests to L1, who failed to respond, and L2 became aware of such failure.146 Ultimately, the District Court imposed harsh discovery sanctions against Curb by striking Curb’s defenses in the case.147 As a result, Curb was forced into an unfavor-able settlement with the plaintiffs.148 Curb then filed a malpractice suit against L2, but the District Court dismissed the case.149 Referring specifical-ly to L1’s instructions that L2 should have no contact with Curb, the court held that L2 had “absolutely no superior duty to disregard and violate the terms” on which L2 had been retained.150
In a de novo review, the Fifth Circuit reversed the dismissal, reinstating the claim against L2.151 In essence, the appellate panel rejected the District Court’s reliance on contract principles to determine L2’s duties to Curb, stat-ing that the attorney-client relationship “superinduces a trust status of the highest order . . . strictest fidelity and honor.”152 Referring to Louisiana’s MRPC 1.4, the court found that local counsel “owes an inherent nondelega-ble duty to report directly to [the] client any known instances of malfeasance or misfeasance on the part of lead counsel that an objectively reasonable lawyer in the locality would conclude are seriously prejudicial to the client’s interests.”153
To avoid impractical results from this pronouncement, the Court noted that L2’s duty must be kept in perspective: “[I]t is clear that when the client has vested lead counsel with primary responsibility for controlling and con-ducting the litigation, local counsel’s direct obligations to the client are sub-stantially lessened.”154 Under this lessened obligation, local counsel need not
143. Id.
144. Id. at *2.
145. Id.
146. Id. at *1.
147. Curb Records, 1999 WL 1240800, at *1.
148. Id.
149. Id.
150. Id. at *3.
151. Id. at *1.
152. Id. at *1.
153. Curb Records, 1999 WL 1240800, at *6.
154. Id.
feel impelled to closely monitor lead counsel’s work155 and need not notify the client if he or she “disagrees with the professional judgment exercised and/or strategies pursued by lead counsel so long as those judgments and strategies lie somewhere on the spectrum of norms.”156 Nevertheless, the Court reiterated its conclusion that the “Louisiana Rules of Professional Conduct do not allow local counsel to turn a blind eye toward the willful disregard of court orders by lead counsel when it should be evident to him that such conduct will seriously prejudice the client’s interests.”157
Consistent with the analysis of Curb Records, but reaching the opposite result, is the New Jersey Appellate decision in Masone v. Levine.158 In that case, a client being sued for causing environmental damage wished to retain lead counsel from out of state (L1).159 L1 was admitted pro hac vice, but he was required to affiliate local New Jersey counsel, L2.160 During the course of settlement negotiations, L1 falsely told the client that the claim against it was covered by insurance.161 L2 was not aware that L1 was lying.162 Even-tually, the client sued both attorneys for malpractice.163 As to L2, the client argued that L1’s malfeasance should be imputed to L2 because the court rule that permitted L1’s temporary admission stated that the local attorney would be “responsible for . . . the conduct of the cause and of the admitted attorney therein.”164 The trial court dismissed the claim, and the client appealed.165
The Appellate Court affirmed the dismissal because to do otherwise would be “to interpret the rule charging local counsel with responsibility for the course of the litigation as imposing virtually absolute liability on local counsel for the misdeeds of pro hac vice counsel.”166 The court easily distin-guished several other New Jersey cases in which local counsel had been
155. Id. The court cited favorably an Eighth Circuit opinion, interpreting Minnesota law, that local counsel “does not automatically incur a duty of care with regard to the entire litigation.” Macawber Eng’g, Inc. v. Robson & Miller, 47 F.3d 253, 257 (8th Cir. 1995).
156. Curb Records, 1999 WL 1240800, at *6.
157. Id. A similar case involved two local attorneys representing the same client and estate. Estate of Spencer v. Gavin, 946 A.2d 1051, 1054–59 (N.J. Super. Ct. App. Div. 2008). L2, who was providing limited services, became aware that L1 was misappropriating funds from the client. Id. at 1058–60. L2 did not participate in the malfeasance, but failed to inform the client of L1’s behavior. Id. The New Jersey Appellate Court found a cause of action against L2. Id. at 1069. The court based its ruling in part on Rule 1.4, but it also found support in Rule 8.3(a), the duty of a lawyer to report another lawyer’s ethical violations. Id. The court’s reference to Rule 8.3(a) has been questioned in Richmond, supra note 2, at 504–05.
158. 887 A.2d 1191 (N.J. Super. Ct. App. Div. 2005).
159. Id. at 1192–93.
160. Id.
161. Id. at 1193–94.
162. Id.
163. Id. at 1194.
164. Masone, 887 A.2d at 1196.
165. Id. at 1192–93.
166. Id. at 1196–97.
found liable because in each of them the local attorney had actively partici-pated in the improper behavior of lead counsel.167
3. Summarizing the Rules and Case Law
As we have seen, the Rules and the selected cases do offer guidance to an attorney who contemplates serving as L2 and communicating through L1.
The principles may be summarized as follows:
i. L2 may assume a limited role in a matter in which L1 serves as lead counsel. If assigned a limited role, L2 has no duty to closely monitor L1’s activities.
ii. It is legitimate for L2 to report to L1 rather than to the client, but it is best if the client explicitly consents.
iii. L2 should be sensitive to changes in circumstances that may raise doubts as to whether the agreed flow of communications is still appropriate.
iv. If L2 ordinarily reports to L1, then L2 has no duty to communicate with the client if L2 simply disagrees with the way L1 is handling the matter.
v. Regardless of the existing arrangements, L2 has an ethical obligation under Rule 1.4 to inform the client if L2 becomes aware that L1’s activities are harming the client.
vi. L2 may be liable to the client if L2 becomes aware of L1’s harmful behavior and takes no action to inform the client.
L2 will not be liable if L2 is unaware of the harmful behavior.
Assuming an arrangement in which L2 is asked to communicate through L1, these six principles should apply comfortably to Scenario 1 (Co-Counsel) and Scenario 3 (Expert Consultant). The principles may also govern Scenar-io 2 (Temporary Assistant) and ScenarScenar-io 4 (Informal Consultant), but only if
167. Id. (citing Maldonado v. New Jersey ex rel. Admin. Office of Courts-Prob. Div., 225 F.R.D. 120 (D.N.J. 2004); Ingemi v. Pelino & Lentz, 866 F. Supp. 156 (D.N.J 1994); Itel Containers Int’l Corp. v.
Puerto Rico Marine Mgmt., Inc., 108 F.R.D. 96, 99, 104-05 (D.N.J. 1985)); see also Richmond, supra note 2, at 495–500 for additional analysis of Curb Records, 1999 WL 1240800, and Masone, 887 A.2d 1191, along with practical advice for local counsel.
L2 knows the identity of the client. If the client is unknown to L2, it would make no sense for a court to find that L2 has a duty to communicate with the person L1 is representing. In Scenario 5 (Local Counsel), L2 can assume responsibilities similar to those in any of the other four scenarios, and the application of the six principles will depend on L2’s actual functions.
V. THE SHORTCOMINGS OF THE RULES AND WHAT TO DO ABOUT THEM
The analysis in Part IV has uncovered a number of shortcomings in the Rules with respect to the affiliation of L2 in a matter and with regard to the assignment of communication responsibilities as between L1 and L2. The shortcomings may be consolidated into two points of concern, for which so-lutions are offered by means of new Comments to Rules 1.2 and 1.4.
Shortcoming #1. There is no requirement for L1 or L2 to inform the client that L2 is being engaged in a matter being handled by L1. This prob-lem was identified in Part IV(A) of this article.
Proposed Solution. The following Comment should be added to Rule 1.2, following current Comment 4:
A lawyer should obtain the client’s informed consent, preferably in writing, before affiliating in the client matter a second attorney from a different law firm. Covered affiliations include the engagement of local counsel in a different jurisdiction, co-counsel to share responsi-bilities in a matter, and an expert consultant to strategize and advise on a matter. Such consent need not be obtained if: (1) the first law-yer seeks only a brief, informal consultation with the second lawlaw-yer;
or (2) the second lawyer provides limited, temporary assistance un-der close supervision by the first lawyer. Nevertheless, whenever the second lawyer’s fees are charged to the client, or when a consultation involves the disclosure of privileged information, the client’s in-formed consent should be obtained with regard to the affiliation.
Where consent should be obtained, the second lawyer should take reasonable steps to determine that the consent has been granted. This Comment does not address a lawyer’s consultation with a second lawyer for ethics advice.
Analysis. This new Comment would address Scenario 1 (Co-Counsel), Scenario 2 (Temporary Assistant), Scenario 3 (Expert Consultant), Scenario 4 (Informal Consultant), and Scenario 5 (Local Counsel). The pro-posals are consistent with ABA Formal Opinions 88-356 (temporary
law-yers), 97-407 (expert consultant), and 98-411 (lawyer-to-lawyer consulta-tion).
Shortcoming #2. It is unclear whether the permissible limitation on the scope of representation under Rule 1.2(c) includes limitations on the means and extent of communication with a client. This gap in the Rules af-fects both single-lawyer and multiple-lawyer situations. These concerns were raised in Parts III(B)(2), IV(B), and IV(C) of this article.
Proposed Solution. The following Comment should be added to Rule 1.2, following current Comment 8:
The means and frequency of communication from a lawyer to a cli-ent may be limited, provided that the limitation is reasonable under the circumstances and the client provides informed consent to the ar-rangement, preferably in writing. See Comment ___ to Rule 1.4.
[Reference is to the proposal immediately following.]
In addition, the following Comment should be added to Rule 1.4, follow-ing current Comment 4:
As provided in Comment ____ to Rule 1.2, the means and frequency of communication from a lawyer to a client may be limited by agreement. A permitted limitation would include the assignment of communication responsibilities to one lawyer in a situation in which representation on a client matter is being carried out by lawyers in more than one law firm. The lawyer who, by agreement, does not have the communication responsibility, nevertheless retains a duty to report directly to the client if the lawyer reasonably believes that the reporting lawyer is violating these Rules or is otherwise causing ac-tionable harm to the client.
Analysis. These new Comments can be applied to all of our scenari-os in conjunction with the Comments propscenari-osed above for Shortcoming #1.
The proposals are consistent with the case law described in Part IV(C)(2) of this article.
As an alternative to these new Comments, the ABA might opt for a new rule more broadly governing multiple-lawyer situations. As noted in Part III(A) of this article, references to affiliated attorneys may currently be found in Comments to Rules 1.1 and 1.6, and in Rules 1.5, 5.1, and 5.5 and their
respective Comments.168 The ABA might consider adding a new Rule 1.19 at the end of the section on the client-lawyer relationship. Such a rule could cover client consent to the affiliation of L2 and the assignment of communi-cation responsibilities, consistent with the Comments proposed above. The rule could also address supervisory responsibilities between the two lawyers and how each lawyer must address conflicts of interest, confidentiality, and other duties under the Rules.
If the task of drafting new comments or a new rule goes beyond what the ABA is willing to do, then the Committee on Ethics and Professional Re-sponsibility should at least issue a Formal Opinion to address the concerns raised in this article. Such an Opinion could supplement and expand upon Formal Opinions 88-356 (temporary lawyers), 97-407 (expert consultant), and 98-411 (lawyer-to-lawyer consultation).
VI. CONCLUSION
The Rules of Professional Conduct cannot, and need not, cover every ob-ligation of an attorney to his or her client. Nevertheless, as this article has demonstrated, the Rules should address whether L1 must inform the client when affiliating a second attorney to act as co-counsel, temporary assistant, expert consultant, informal consultant, or local counsel. Similarly, the Rules should be expanded to allow limitations on the scope of lawyer-client com-munications and to permit assigning communication responsibilities in mul-tiple-lawyer situations. These additions to the MRPC will offer needed guid-ance and reflect the realities of contemporary law practice.
168. MRPCR.1.1 (1983); Id. at 1.5; Id. at 1.6; Id. at 5.1; Id. at 5.5.